Lame Attempt at Humor in Court

I’m in court today, arguing a motion to reconsider a sentence. The judge accepted the defendant’s plea of guilty to speeding (over 100 in a 55 zone) and his plea of not guilty to willful reckless driving. The problem was that the judge, in addition to imposing a fine, also ordered that the defendant’s driver’s license be revoked for 90 days under the authority of a statute that reads:

Upon conviction of any person in any court within this state of any violation of (1) any law of this state pertaining to the operation of motor vehicles or (2) any city or village ordinance pertaining to the operation of a motor vehicle in such a manner as to endanger life, limb, or property... the judge ... may... order the revocation of the operator's license.”

You see how the offense must “endanger life, limb, or property?” Because of that, a case held that the statute inapplicable to the charge of speeding. so, I’m asking the court to reinstate my client’s driver’s license because, under the statute, its order was unlawful.

I hand the judge the case, hand the prosecutor a copy and, as they read it, I remark that it’s a 1976 decision but that the statutory language is the same. The judge, deep in thought (he’s an intelligent judge), says, jokingly of course and low so no one but the lawyers can hear him, “What were they smoking?”

I didn’t really think it through before I said it but responded, “Well, your honor, it was the 70’s.” Nobody laughed then either, except me later.

The Forever War?

I read today that the Obama Administration is attempting to do away with the phrase "the war on drugs." Let's hope it's not simply another broken promise and believe our eyes and not our ears. Still, it's refreshing to hear that, at least in spirit, the government may stop its war against its own people, many of whom are simply drug users, or addicts, who, like the client I represent who recently lost his case in the Eighth Circuit, finally get sober during long prison terms for conspiracy to distribute. Not the best way to spend taxpayer dollars, but a fitting way to fight a war where the truth is often the first casualty.

Maybe I'm just down on the term "war" as I've been listening to an excellent audiobook about it, Dexter Filkins' excellent The Forever War tells stories about what he saw as a war correspondent during the wars in Iraq and Afghanistan.

I highly recommend the book as brings the war "home," or as close as a book can bring it, without much commentary or editorializing, but simply with stories of what the author saw while on the ground, embedded with the men fighting it who seemed to be mostly poor kids in their teens or early 20's from a place Filkins had never heard of.

I've been riveted by the stories all week, just listening to the audiobook, sometimes wanting to drive around the block again to hear the end of a story. "Driveway moments" as NPR calls them, are frequent. He describes the 22-year old who sat beside him on the transport, who made a certain comment that stuck with the author and then was killed four days later, for example, or the kid who stuck his arm out and insisted on walking in front of Filkins up the stairs and whose head was then split open by a bullet.

Josh Karton says that "the enemy of all art is generality" and Filkins creates great art, or at least good and memorable stories, by avoiding it with simple, concrete stories that show rather than tell the action and avoid judgment or interpretation of it.

I can't recommend this book enough. I once wrote about a sign that appeared in Iraq stating "America isn't at war, it's at the mall." This book tells the stories of the kids, and others, who went to war instead and who are, in many cases, still there. The stories are good and a lot of good comes from simply hearing these stories that have gone untold amidst our trips to the mall.

It's a good read, or listen, especially on Memorial Day weekend.

"It's Our Courtroom"

I’m in court this morning to waive a preliminary hearing and the deputies are telling a woman in the front row, who’s sitting with her child, that she has to leave. The judge hasn’t entered yet; the deputies are simply preparing for this case, in which a 19-year old Elkhorn, NE kid is charged with killing his father after the father had an affair with the son’s girlfriend.

The details of the alleged crime, which have run in the paper for days, are going to be ugly and I hear the deputies talking about the woman not being able to stay in court with her kids. So I say, not to them but to another attorney, “They can’t make her leave, not just for bringing her kids into court.” The deputy standing closest to me turn to me and says, “Yes we can, it’s our courtroom.” I have to do a two-minute prelim waiver, have to then go to the jail to meet with both a new and a new client and then have to rush back to the office to write a brief, so I don’t have the time nor the interest in debating with this guy who thinks the courtroom belongs to him and his friends who carry guns.

But think about the implications of this scenario. The deputies decide, without asking the judge, that kids should have to leave “their courtroom” since the testimony might not be appropriate. They don’t bother to check the law, the court rules or even check with the judge; they just decide she can’t stay.

I didn’t intervene, like I probably should have, and the woman doesn’t seem particulary bothered. I decide that I have “no dog in that fight” and let it go. But the implications, and the raw display of power, bug me. So I check the Court Rule, § 6-201, which says,

as a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party's right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.

I’ll find the judge tomorrow and tell her the story, so she knows that the courtroom she presides over was partially “cleaned out” before she came in, and that the deputies didn’t feel the need to consult with her before they decided who could stay or go. I won’t mention names, or get anyone in trouble, but want to make sure the guys with guns know they don’t get to control the courtroom, or disregard its rules without a consequence.

The Smell Test

I read a police report the other day in which a search warrant was procured after an investigator allegedly “smelled” raw marijuana when his allergies flared up after he entered a house. Another time, in misdemeanor DUI case, the judge denied the motion to suppress I filed after a cop smelled marijuana while sitting at a stop light and my client cruised through the green light with the window rolled down. When he denied the motion, after I argued the impossibility of such “probable cause,” he commented that I must not have been around pot very much. (How was I supposed to answer that question? Maybe he was just mad at me for asking the cop if he drove, Ace Ventura-style, with his head out the window?)

But now the Eighth Circuit has opened the door (window?) to even better smelling techniques on the part of officers by approving a warrantless search of a home after officers (1) received an anonymous tip that meth was being manufactured in the home and (2) smelled an odor consistent with meth manufacturing:

In this case, the officers had probable cause to believe methamphetamine was being manufactured in Clarke’s home. The officers received an anonymous tip that methamphetamine manufacturing was occurring. Upon arrival, Officer Groat smelled an odor which, based on his training and extensive experience, he recognized as consistent with methamphetamine manufacturing . . . Exigent circumstances also existed. Because the officers had probable cause to believe methamphetamine was being produced in Clarke’s home, the officers reasonably concluded there was a potential threat to the safety of the officers, anybody inside the home, and anyone in the surrounding area.

Who needs a drug dog when the officer’s own allergies “alert” in the presence of pot? Who needs a warrant to search a home when you can simply claim to have smelled "chemicals" consistent with meth production?

Who needs the Fourth Amendment?

Quotes Worth Reading: Torture Edition

I just watched a You Tube video in which Pat Buchanon, who was debating with Jonathan Turley and Chris Matthews about whether prosecution of Bush administration officials was warranted, made this astounding statement in support of his position that torture, although against the law, was nonetheless proper:

"There's a higher moral law here, that's what Dr. King was all about."

After that, it's refreshing to read Frank Rich's perspective on this issue in the New York Times this morning:

Five years after the Abu Ghraib revelations, we must acknowledge that our government methodically authorized torture and lied about it. But we also must contemplate the possibility that it did so not just out of a sincere, if criminally misguided, desire to “protect” us but also to promote an unnecessary and catastrophic war. Instead of saving us from “another 9/11,” torture was a tool in the campaign to falsify and exploit 9/11 so that fearful Americans would be bamboozled into a mission that had nothing to do with Al Qaeda. The lying about Iraq remains the original sin from which flows much of the Bush White House’s illegality.
. . .
President Obama can talk all he wants about not looking back, but this grotesque past is bigger than even he is. It won’t vanish into a memory hole any more than Andersonville, World War II internment camps or My Lai. The White House, Congress and politicians of both parties should get out of the way. We don’t need another commission. We don’t need any Capitol Hill witch hunts. What we must have are fair trials that at long last uphold and reclaim our nation’s commitment to the rule of law.

Another seemingly similar quote came from Newsweek's Jonathan Alter, who, when appearing on Countdown last week to discuss whether officials should be prosecuted for sanctioning torture, called out Dick Cheney:

And what's so fascinating is that Dick Cheney stands almost alone. You don't see former president Bush out there pursuing this. You don't see Condi Rice or Domn Rumsfeld or others. It's the former vice president who is becoming a forlorn and I think soon to be further disgraced figure.

As Digby pointed out, however, Jonathan forgot what he was saying back in 2001 when he wrote:

In this autumn of anger, even a liberal can find his thoughts turning to... torture. OK, not cattle prods or rubber hoses, at least not here in the United States, but something to jump-start the stalled investigation of the greatest crime in American history. Right now, four key hijacking suspects aren't talking at all.

Couldn't we at least subject them to psychological torture, like tapes of dying rabbits or high-decibel rap? (The military has done that in Panama and elsewhere.) How about truth serum, administered with a mandatory IV? Or deportation to Saudi Arabia, land of beheadings? (As the frustrated FBI has been threatening.) Some people still argue that we needn't rethink any of our old assumptions about law enforcement, but they're hopelessly "Sept. 10"--living in a country that no longer exists.

So from media hypocrisy to media courage, we go to my second favorite quote of the week, from, of all places, Fox News. Shepard Smith said, during a debate with Judith Miller (yeah, that Judy Miller):

"We are America, we don't torture! And the moment that is not the case, I want off the train! This government is of, by, and for the people -- that means it's mine....
"They better not do it," he said. "If we are going to be Ronald Reagan's Shining City on the Hill, we don't get to torture. We don't do it."

Will he keep his job? If they were looking for a reason to fire him after that statement, he gave them one shortly thereafter when he spoke out during Fox News online show, The Strategy Room. After the debate was framed in terms of whether torture works, Shep had had enough and said:

"We are America!" he shouted, slamming his hand on the table. "I don't give a rat's ass if it helps. We are AMERICA! We do not fucking torture!!"

The worst quote of the week, and the one that criminal defense lawyers should consider quoting from at sentencing, comes from the WaPo's David Broder, who said, when writing of the call for prosecuting torture enablers:

But now Obama is being lobbied by politicians and voters who want something more -- the humiliation and/or punishment of those responsible for the policies of the past. They are looking for individual scalps -- or, at least, careers and reputations.

Their argument is that without identifying and punishing the perpetrators, there can be no accountability -- and therefore no deterrent lesson for future administrations. It is a plausible-sounding rationale, but it cloaks an unworthy desire for vengeance.

As the Monty Python character once remarked, "This is supposed to be a happy occasion! Let's not bicker and argue about who killed [tortured?] who."

First Improv Class

I haven't blogged much lately, but plan to get "back on the horse" soon. My wife, who works in banking, needed one more class to finish her Masters, which has meant a busy semester for both of us, especially her. She finishes in about ten days and walks across the stage at Drake University in early May. That was one reason but I also fell behind in the administrative side of the practice of law and have been using my non-work time to catch up on billing.

But I did something this year that I've wanted to do for a long time. I signed up for an Improv class. Don Fiedler brought many of these techniques to NCDC and his stories about using these techniques in trial, and even before the Eighth Circuit, piqued my interest. Then, getting the chance to work with the great Josh Karton at TLC taught me how much actors have to teach lawyers. Finally, this post by Mark Bennett prompted me to buy the book and finally take the plunge.

Last Tuesday, at our first class, I felt a little like Michael Scott at his Improv Class, hoping not to be the "old guy" who nobody wanted to hang out with afterward and whose improv revealed more issues than laughs.

But I loved it. What was amazing was that the best things happened when I didn't have time to think. When I tried to be funny, I wasn't, but when I didn't try, it was not only fun for me but (at least slightly) funny for the class.

I was impressed by the way the instructor listened and wonder if doing improv helps improve listening skills, which Gerry Spence describes as one of the most important skills a trial lawyer can learn.

I'm not quitting my day job and am glad it's only a small class. "Whose Line" will have to wait a few years, I guess. But I can't wait for the next class and hope that I can use it in court, if nothing else but to make work more playful, and hopefully more effective. I'll keep you posted.

`Win-at-all-cost' behavior

From today's Miami Herald:

Accusing federal prosecutors of knowingly and repeatedly violating ethical guidelines in a high-profile narcotics trial, a Miami federal judge Thursday reprimanded multiple assistant U.S. attorneys who took part in the case -- and fined the federal government more than $600,000.

While prosecuting Shaygan, the U.S. attorney's office began a secret, undisclosed side investigation of Shaygan's legal team, citing a suspicion of witness tampering on the part of the defense.

No evidence surfaced that the defense team was manipulating witnesses. On the contrary, defense attorneys rejected bribery invitations floated on tape from government informants...

Prosecutors later called the same informants to the stand as key witnesses in their case against Shaygan, while saying nothing of the recordings. The government falsely introduced those informants -- former patients of the doctor -- as impartial, neutral witnesses.

Jurors, and the judge presiding over the case, found out about the tape recordings by accident, when one of the informants blurted out their existence while testifying.

Wouldn't you have loved to have seen the look on the prosecutor when the snitch blurted out the existence of the tapes and implicated the prosecution? Talk about being "hoisted with your own petard."

On a related note, yesterday Attorney General Eric Holder "told assistant US attorneys for the District of Columbia that they must respond to negative perceptions of federal prosecutors by doing "the right thing."

"Your job as assistant US attorneys is not to convict people. Your job is not to win cases. Your job is to do justice. Your job is in every case, every decision that you make, to do the right thing. Anybody who asks you to do something other than that is to be ignored. " Any policy that is at tension with that is to be questioned and brought to my attention. And I mean that."

A nice idea. However, as I frequently tell my clients, judges are going to believe their eyes and not their ears so the question is whether Holder's words will truly change actions, and stop tape recordings of defense lawyers conversations.